As this blog has previously reported, in late July Michigan's attorney general filed a petition (PDF) for rehearing en banc in Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111). In that case, a divided panel struck down Michigan’s voter referendum Proposal 2 as violative of the 14th Amendment. The Court subsequently requested that the various respondents file responses by August 17, and the respondents have now done so. (It should be noted that the Sixth Circuit generally only requests a response to 10% of petitions for en banc review).
In the first response (PDF), citing caselaw dating back to the early 1980s and late 1960s, the Cantrell Respondents argue that the panel “correctly applied long-standing Supreme Court jurisprudence” when it ruled that “Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” And, in rejoinder to the Attorney General's claim that the panel ruling is incompatible with an earlier ruling by the Ninth Circuit as to a similar California referendum, Proposition 209, the Cantrell Respondents state that “to the extent that a circuit split exists, it should be left to the Supreme Court to correct the Ninth Circuit’s misinterpretation of established law.”
In the second response (PDF), the Coalition to Defend Affirmative Action ("CDAA") argues that the panel decision correctly struck down Proposal 2 for “denying black, Latino/a, and Native American residents access to the governing boards of Michigan’s public universities on terms equal to those available to all other citizens.” Specifically, citing Grutter v. Bollinger, 539 U.S. 306 (2003), the CDAA Respondents argue that Proposal 2 is unconstitutional because it “depriv[es] racial minorities of the right to persuade the university governing boards to approve by simple majority vote the exact affirmative action program that the Supreme Court so recently held was the only practical means by which significant numbers of black, Latino/a, and Native American students could be admitted to Michigan’s most selective universities” (emphasis in original).
Several institutional amici were granted leave to jointly file a brief on the merits of the petition: Michigan Civil Rights Initiative Committee, American Civil Rights Foundation, Pacific Legal Foundation, Center for Equal Opportunity and the National Association of Scholars. These amici subsequently filed their brief (PDF), which supports the petition for rehearing. In addition, several former career attorneys and one political appointee of the Civil Rights Division of the U.S. Department of Justice moved the Court for permission to file an amicus brief in support of the petition. Without explanation, the Court denied their motion. Finally, on August 16, the day before the Respondents' briefs were due, the Michigan Civil Rights Commission sought permission to file an amicus brief opposing the petition. No ruling as to that request has yet been issued.
We expect a decision on the en banc petition within the next 3-6 weeks, and will continue to monitor the case.